Marijuana ballot question includes landlord rights

Unlike the ballot question in 2012 that legalized medical marijuana in Massachusetts, the upcoming November ballot question that would now legalize recreational use of marijuana in the Commonwealth has language that carves out specific landlord rights, including a ban on smoking it or growing it on one’s property. Efforts of SPOA leaders and members when we had similar concerns about medical marijuana likely contributed to this language.

This article contributed by the Small Property Owners Association. May not reflect the views and opinions of MassLandlords, Inc.

Under section 3 of the ballot question, the law, if approved by the voters in the November 8 election, would “not be construed to bar landlords of residential housing from prohibiting the smoking of marijuana” on their properties if a general no-smoking policy is in effect. Only smoking is prohibited, not taking marijuana in other forms, such as in brownies or other food, or in tinctures or oils or in any other non-smoking form of ingestion.

Under this same section, moreover, tenants can be prohibited from growing marijuana and from extracting marijuana resin for hash oil. Both growing marijuana and extracting its resin are dangerous operations that can seriously damage an apartment and, worst of all, cause fire.

With these rights, landlords can avoid substantial dangers from marijuana

SPOA takes no stand on whether legalizing recreational marijuana is morally or politically right or wrong. But we do insist on landlords’ rights to prevent some of the serious legal and practical dangers in rental housing that will arise if marijuana is legalized.

Conflict with federal law and “civil asset forfeiture”

While the risk is small, allowing marijuana on one’s property exposes landlords to the chance of losing their property entirely. Marijuana in any form is still illegal federally, which allows federal officials to seize any property involved in illegal drug use, even if it is legal within the state. Federal law takes precedence over state law if there is a conflict of laws.

This federal “civil asset forfeiture” law, as it is called, came home to Massachusetts landlords recently when a Tewksbury motel owner was taken to court by the U.S. government. Drug activity had occurred in one of the motel units many years ago, totally out of sight and control of the owner. The feds had targeted the property because it was worth a lot and had no mortgage. on it. Proceeds from seizure go into federal and local police budgets.

The cruelty of this law is that the owner had to prove his innocence, not the other way we Americans are accustomed to: innocent until proven guilty. After spending $500,000 in lawyer’s fees to prove his innocence, Russ Caswell, the motel owner, received $1 million worth of free legal help from the Institute for Justice (IJ, www.ij.org), a national libertarian public interest law firm, and won his case. IJ litigates issues of property rights, among others, and is currently challenging the constitutionality of rental inspections in Red Wing, Minnesota, and Pagedale, Missouri.

Practical dangers of marijuana use and cultivation

While the conflict between federal and state law is a low-probability threat to landlords, their rights in the ballot question language to prohibit smoking and growing of marijuana will save many landlords from other serious practical and much more likely dangers.

Smoking marijuana may interfere with other tenants’ rights

Smoking, as opposed to ingesting marijuana in food, tinctures, oils, salves or through vaporizers, can cause several different problems with other tenants who, for various reasons, do not want to be exposed to marijuana smoke.

Smoke allergy  Some people have allergies to smoke, including marijuana smoke. As long as a landlord has a no-smoking policy, enforcing it against marijuana smoking would prevent a potentially serious conflict between a landlord’s tenants.

Avoidance in addiction recovery  People who are recovering from marijuana or other drug addiction will want to avoid any hint of marijuana smoke that could trigger a relapse. Even tobacco users who have quit may have a similar problem with tobacco smoke. For the sake of their recovery, a no-smoking policy would prevent another type of serious tenant conflict. If the smoking cannot be stopped, reasonable accommodation rules for the disabled would kick in and could plunge a landlord into an anti-discrimination lawsuit.

Avoidance of any marijuana contact  A similar concern is those who just do not want contact with marijuana smoke in any form, including parents who do not want their children exposed to it. If a conflict arises between tenants, someone may need to move out in the middle of a lease. A no-smoking policy would avoid that situation. Most tenants want smoke-free housing, according to surveys.

Growing marijuana exposes owners to serious property damage

Growing marijuana involves large quantities of water and electricity, both of which are dangerous to landlord concerns.

Amateur electrical wiring defects  To save on heavy electricity costs, marijuana growers using their apartments for “grow-ops” may try to wire their apartment’s circuitry to the main electrical line entering the property, “ahead” of the meter. In other words, bypass the meter to get free electricity. But such wiring, without fuses, presents a very high risk of fire. Enough said.

Water damage  The quantities of water needed to grow even just six marijuana plants, the maximum that would be allowed under the proposed ballot question language, would be substantial. Water could leak to the wooden floor underneath the plants, destroying the floor entirely and require complete replacement. Moisture in the air – humidity – can be so high and continuous as to cause mold to grow rapidly, degrade sheetrock and plaster walls, and damage any wallpaper or paint on walls.

Hash from marijuana  Extracting a resin from marijuana – called “hash” – is an alternate form of marijuana that requires a butane torch to produce it – seriously dangerous.

Criminal activity around grow operations is costly and dangerous

Even in Colorado, which has legalized recreational marijuana, criminal activity around grow operations is so great a threat that large growers hire armed former combat veterans to guard their facilities. The value of stolen marijuana increases several times over when it is diverted into interstate commerce.

Grow operations also hold a great deal of cash, another attraction to criminals. While these risks are less for small owners, they are not zero, and small owners cannot afford guards.

Distinguishing medical from recreational marijuana

The Massachusetts medical marijuana law makes the need to use it a disability barring discrimination against a person with the disability and requiring a “reasonable accommodation.” In other words, one cannot refuse to rent to someone with a disability requiring use of marijuana as a medicine, which places landlords in an impossible conflict: must rent to a person under state law but must not rent under federal law. Moreover, a disability may require an adjustment in rules or procedures or even some physical features of an apartment if needed to allow the disabled person to live normally in an apartment.

But a further problem arises: under anti-discrimination law, “it is unlawful to cause to be made any written or oral inquiry, or record, concerning the race, color, religious creed, national origin, sex, age, ancestry, veteran status, sexual orientation, marital status or handicap of any person seeking to rent… such housing…” In other words, you can’t ask someone if they have a disability requiring use of marijuana as a medicine. The law needs to change so that one can distinguish medical marijuana (allowable regardless of a no-smoking policy) from recreational marijuana (not allowable under a no-smoking policy).